The Law of ADR: Legislation, Cases and the Courts

AuthorAndrew J. Pirie
ProfessionFaculty of Law. University of Victoria
Few people would be surprised to find there exists a large body of law
on subjects such as contracts, torts, property, business associations, the
constitution, the family, crime and trusts, to name a few. One source of
this law comes from the decisions of judges regarding disputes that
have gone to the courts for adjudication. The disputes may have been
about such issues as whether there was a need for independent legal
advice before the elderly person signed the bank guarantee, whether a
psychiatrist owed a duty of care to warn the target of his patient’s rage,
whether the chief executives are personally liable for a crime commit-
ted by their company or whether sexual orientation is relevant in
deciding what is in the best interests of the children. Court decisions
on these and other disputes, along with their interpretation and appli-
cation to future cases that come to court, make up the powerful and
evolving legal standards or common law that lawyers employ to advise
clients what can, cannot or might be done in specific situations.
The law also includes legislation enacted by federal, state, territo-
rial or provincial governments. This legislation may, for example,
establish guidelines for support payments in divorce proceedings,
require sustainable practices to be followed when harvesting timber,
make certain conduct criminal, fix income tax rates, provide protection
against unfair trade practices or regulate the price of oil and gas. Legis-
lation can actually prevent some disputes from arising by making it
clear what behaviours or which standards are to be followed. Legisla-
tion also can be a way of resolving an ongoing dispute by setting out a
legislated solution.
Although this law may be expected, the law of ADR may be a sur-
prise. After all, alternative dispute resolution emerged as a movement
that stood in stark contrast to court adjudication. ADR proponents saw
a need to avoid the undue cost and delay of litigation. They extolled
the virtues of non-adversarial approaches to dispute resolution. Nego-
tiation, mediation and other forms of consensual decision-making were
a first focus of ADR and informal justice and informalism were defining
characteristics in ADR’s early days. ADR and formal law more resem-
bled antonyms than anything else in contemporary dispute resolution
A number of factors have combined to change this picture. As dis-
cussed in chapter 1, the meaning of ADR has come to include how liti-
gation is managed with a focus on the appropriate method for resolving
any given dispute. The space that initially existed between ADR and
the court is no longer as yawning. There are increasing examples of
ADR initiatives, such as mandatory or court-connected mediation,
being implemented within the very formal justice system that ADR first
stood in opposition to. An ADR movement that had attracted hostility
and criticism from the legal profession is now being heartily embraced
by most lawyers. ADR practices and procedures are presented as an
integral part of what it is that good lawyers do. Along with this legal
acceptance, there have been increasing examples of ADR being for-
mally institutionalized by governments and organizations into existing
societal systems and structures. Not surprisingly, disputes about ADR
use have come with these developments. Some disputes have been
principled and about important policy issues such as qualifications.
But other disputes have been more pragmatic and pressing, requiring a
more immediate reply.
Should a government endorse ADR in this legislative session? What
should the endorsement say?
Should ADR be spelled out for pupil and school disputes as well as
for funeral home operators and their clientele?
Can a party be exempted from attending mandatory mediation?
Are communications made in mediation privileged?
What is the scope of judicially assisted dispute resolution?
When should a judge order a mini-trial to be held?
Can a mediator be negligent?
It perhaps should not be a surprise that the law of ADR is also developing.
The Law of ADR: Legislation, Cases and the Courts
The theory and practice of ADR now are informed by the law of
ADR. Understanding the law of alternative dispute resolution is impor-
tant because this law — whether it is judge-made law or legislation —
can directly affect and even dictate what should or must be done in
best ADR practices. In a related way, the law of ADR and how this law
develops have enormous potential to shape the ideological meaning of
ADR by creating these legal frameworks for what is normal, natural,
and essential in disputing practices and by having the courts resolve
the disputes that arise about the meaning of ADR and how it should be
practised. A critical eye on the law of ADR provides opportunities to see
what components of disputing the legal frameworks and judges favour
and what parts may be ignored or left behind.
The law of ADR can be conveniently examined by considering
selected ADR legislation, judicial decisions involving ADR and ADR in
the courts.
As the use of ADR became popular, governments began increasingly to see
opportunities to apply ADR processes to public disputing scenarios. The
business of running democracies was always filled with controversy. Gov-
ernance disputes, whether about the siting of a new waste management
facility, regulating fisheries, taxing decisions, making modern treaties
or international trade agreements, choosing parks over industrial plants,
criminalizing the right to die, or pepper-spraying protesters tended to be
costly, time-consuming, and often hard to settle. Shielding difficult public
policy decisions and the decision makers by closing Cabinet doors, relying
mostly on a bureaucratic analysis, providing varying degrees of fairness in
administrative hearings, or making and defending town hall–type
announcements was being viewed as unsatisfactory by many people
affected by the issues at hand. More openness and transparency in good
government were being demanded. The emergence of ADR was particu-
larly timely for besieged and cost-conscious governments. ADR develop-
ments in the private sector raised an awareness that better options might
be available to enhance or improve public dispute resolution as well.
Several governmental responses to ADR have been referred to ear-
lier, the most significant of which has been the institutionalization of
ADR in the form of ADR legislation. In the United States, there are over
two thousand federal and state statutes regulating the field. In Canada
and other countries, the number is substantially smaller but growing
steadily. ADR legislation generally takes two shapes.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT